Convention Abbreviation: CAT
COMMITTEE AGAINST TORTURE

311. The Committee considered the second periodic report of Panama (CAT/C/17/Add.7) at its 141st and 142nd meetings, on 21 April 1993 (see CAT/C/SR.141 and 142).

312. The report was introduced by the representative of the State party, who informed the Committee of the efforts his Government had made to improve and adapt the Panamanian penal and penitentiary system to contemporary requirements and of the progress that had been made in bringing the Panamanian justice system into conformity with the Convention. He indicated that those tasks had not been made easier following the events of 20 December 1989, which had led to the destruction of the penitentiary centres and an increase in crime.

313. The representative also provided further information of general interest, relating to the separation of powers between the legislative, judicial and executive branches of government and to the organization and structure of the administration of justice in Panama. In particular, reference was made to the powers and composition of the Supreme Court of Justice and its four chambers, one of which, namely the Administrative Division, following the adoption of a recent law, had the power to annul any administrative decisions that undermined the protection of human rights or were not in conformity with the standards provided for in the international human rights instruments to which Panama was a party.

314. The representative also provided a description of the role of the Public Prosecutor, the Attorney General and the staff of the Public Prosecutor's Department in the prosecution of crimes. It was indicated that an inquiry into the prosecution of a crime could be opened by the Public Prosecutor on the basis of information received from the media or other sources without the necessity of an individual complaint or accusation. The legal process in place for the prosecution of crimes consisted of three stages. During each stage all the guarantees of due process were respected, for example, presumption of innocence, right to, and contact with, a lawyer, provision of instructions relating to preventive detention, recourse to habeas corpus and prohibition of coercion. The inquiry procedure, or first stage, was of a maximum duration of two months except in exceptional circumstances, when it could be extended for another two months. Once the inquiry had been completed, the process entered its second or intermediate phase with the accused brought before the competent court. Within 15 working days the court had to decide on the merits of the inquiry. In extreme cases, the court could return the case to the Public Prosecutor in order that further inquiries be undertaken. The third stage was preceded by a given period to permit the defence to gather the necessary evidence and to determine whether to challenge the evidence presented by the prosecutor and appeal against the proceedings so far undertaken. On the basis of the evidence before the court, a decision by the court would be pronounced within 10 days. The accused had the right to appeal to a higher court against any sentence handed down to him.

315. In addition, the representative indicated the measures taken by Panama to ensure the impartiality and independence of the judiciary. He mentioned, in particular, the Council of Judicial Ethics, which evaluated and handed down rulings on complaints from victims of violations of certain ethical or moral principles during judicial procedures.

316. Recently efforts had been made to reduce preventive detention, sentencing to prison and the prison population, through, inter alia, the revision of the penal system.

317. Finally, the representative of the reporting State outlined more specific measures that had been taken to implement the provisions of the Convention, which included the incorporation within domestic law of the definition of torture and penalties for the violation of human rights ranging from 6 months to 15 years' imprisonment and mutual legal assistance in matters of extradition. The representative also indicated the importance his Government attached to meeting the requirements of its international human rights obligations and in this connection referred to the construction and functioning of a model prison at La Joya.

318. The members of the Committee expressed their appreciation for the information contained in the report and that provided by the representative of the State party. They also observed that they had received no allegations that torture was practised in Panama. Nevertheless, they wished to receive more information on how the provisions of the Convention, especially article 1, had been incorporated within domestic law. They also requested further information on the status of the Convention in domestic law and on the 23 court decisions relating to the implementation of the Convention, referred to in the report. They wished to receive further information on the organization, functions and independence of the judiciary and administrators. They also wished to receive information on the number of persons in detention, particularly political prisoners, and asked whether the public had welcomed the measures taken by the Government on the depenalization of the judicial system. Further information was also sought on the work of the Panamanian Commission on Human Rights, especially with regard to torture-related matters, and whether non-governmental organizations could regularly inspect and visit prisons and places of detention. Members of the Committee also wished to know whether the Government intended to make a declaration under articles 21 and 22 of the Convention.

319. Concerning article 2 of the Convention, members of the Committee requested further information on the application of provisions of the Judicial Code by which the Administrative Division was empowered to nullify administrative decisions which violated justiciable human rights. They also wished to know whether special courts existed for members of the armed or security forces and whether the jurisdiction of ordinary courts could be suspended, notably in a state of emergency. Clarification was also requested as to the compatibility of Panamanian legislation with provisions of article 2, paragraph 3, of the Convention, according to which an order from a superior officer or a public authority could not be invoked as a justification of torture.

320. In respect of article 3 of the Convention, additional information was sought on the measures taken by the State party to ensure that persons were not extradited to a State where the risk of being subjected to torture existed.

321. Regarding article 4 of the Convention, members of the Committee wished to receive further information on the penalization of acts of torture.

322. Additional information was requested on the implementation of articles 5, 7 and 9 of the Convention, particularly with regard to the full application of the principles of universal jurisdiction and mutual legal assistance.

323. With regard to article 10 of the Convention, further information was sought specifically on the training given to medical personnel for the prohibition of torture and the identification and treatment of torture victims.

324. In connection with article 11 of the Convention, members of the Committee wished to receive further information on the implementation of the article, particularly regarding the length of pre-trial detention, the rules and regulations governing preventive detention and the right of an individual to legal assistance from the moment of his arrest.

325. Regarding article 13 of the Convention, clarification was sought as to the authority competent to conduct inquiries into complaints against the police.

326. With regard to article 14 of the Convention, clarification was requested as to the rights of victims to bring a criminal action against a person alleged to have committed a violation of human rights and the rights of victims to rehabilitation and compensation. In particular, members of the Committee asked whether medical centres for the rehabilitation of torture victims existed in Panama and whether or not the State assumed responsibility for compensating a victim of torture whenever a police officer had committed such an act.

327. Concerning article 16 of the Convention, members of the Committee requested further information on the treatment and institutionalization of mentally ill persons, particularly whether specialized psychiatric hospitals existed and whether political prisoners had ever been detained there.

328. Replying to questions raised by members of the Committee, the representative of the reporting State said that the Convention against Torture had been fully integrated into Panamanian legislation and that the Constitution of Panama contained a full definition of torture. Derogations from the Convention were not admissible unless the Convention itself was denounced. The Supreme Court of Justice was concerned with ensuring respect for the Constitution and adherence to the provisions of the Convention. The function of the Attorney General's office was to defend the interests of the State, to ensure compliance with legislation and to monitor the conduct of public officials. The Attorney General was authorized to initiate any proceedings against any official. Panama had a professional civil police force which was subordinate to the Public Prosecutor's Department. It also had a national police force which was subordinate to the Ministry of Justice, which was itself responsible to the President. With regard to the issue of decriminalization and recourse to forms of punishment other than imprisonment, the representative informed the Committee that such measures were favoured when dealing with first offenders charged with crimes customarily punishable by less than three years' imprisonment. The results of those measures had been positive and a failure rate of only 1 per cent had been noted. The representative also indicated that until 21 December 1992 there had been no cases of political prisoners, but that four such cases had recently come before the courts, for which information would be provided in the next report. In addition, he indicated that there were 3,400 persons currently in prison for various types of offences. Non-governmental organizations were allowed access to prisons and other detention establishments and they could make recommendations concerning conditions of detention. Under article 22 of the Constitution any such recommendations must be transmitted to the relevant authorities.

329. Concerning the various questions raised with regard to article 2 of the Convention, the representative informed the Committee that although the possibility existed for administrative decisions to be overturned should they violate human rights, no such cases had been recorded. He also stated that no exceptional circumstances whatsoever, whether a state of war or internal conflict, could be invoked in Panama for justification of torture. In addition, he explained that article 34 of the Constitution did not exempt a person from liability for a manifest violation of a constitutional or legal provision to the detriment of another person on the grounds that he acted under orders from a superior. However, in the case of police officers on duty and members of the armed forces, responsibility fell solely on the superior who had given the order. Furthermore, disciplinary measures could be imposed by a supervisory body of the police force upon police officers who had violated another's human rights.

330. With regard to article 3 of the Convention, the representative explained that in relation to extradition matters Panama adhered to the norms established by the Bustamanti Code and the Caracas Convention and that the extradition of a person would not be permissible if there were evidence that it might lead to his being tortured, executed or persecuted.

331. Concerning article 4 of the Convention, the representative informed the Committee that specific provisions of the Penal Code were devoted to matters relating to torture and other human rights violations.

332. In respect of article 9 of the Convention, the representative indicated that mutual legal cooperation existed between Panama and other States regardless of whether a formal bilateral agreement was in place.

333. In connection with article 10 of the Convention, the representative explained that compulsory training programmes were organized for doctors, lawyers etc. to ensure that they were fully aware of all aspects of human rights issues.

334. With respect to article 11 of the Convention, the representative indicated the measures his Government had taken to implement the minimum rules for the treatment of prisoners and he pointed out that there had been no cases of torture in prison establishments. With regard to pre-trial detention, he stated that the prison authorities must receive a written detention order and that there were no cases of pre-trial detention having lasted longer than one year. He also indicated that Panamanian law provided that the police were entitled to detain a suspect for 24 hours before the rule of habeas corpus applied. Guarantees were provided to ensure that persons were not subjected to coercion when making statements and persons accused of having committed an offence were entitled to make their statements in the presence of a lawyer. Furthermore, all interviews were recorded and the accused had the right to appeal if he felt that constitutional guarantees had been violated.

335. Regarding article 13 of the Convention, the representative indicated that persons who considered themselves victims of torture were entitled to apply for administrative redress and to initiate proceedings in the courts.

336. Concerning article 14 of the Convention, the representative explained that Panamanian legislation provided for compensation in the event of civil liability for wrongful arrest and that if the plaintiff were unable financially to sustain his own case, the State was under the obligation to provide funds for that purpose. Moreover, technical and medical services were provided under the social security system and included therapy for persons suffering from a mental disorder.

337. With respect to article 16 of the Convention, the representative informed the Committee that cases involving mentally ill persons were assessed by the Institute of Forensic Medicine and that criminal proceedings would be suspended until the person was considered fit for trial. Psychiatric institutions did exist in Panama exclusively in the interests of treating persons with mental illness and there were no cases in Panama of persons being or having been held in psychiatric institutions on the grounds of their political opinion.

338. The Committee recalled that when it had examined the initial report of Panama on 23 April 1991 it had concluded that the Government of Panama in its next report should, inter alia, take into account the various questions raised and remarks made by the members of the Committee and provide a full description of the legislative measures taken to implement each article of the Convention in practice. The Committee was of the view that the first supplementary report fulfilled all those expectations.

339. It concluded that the legal system in Panama was generally in accordance with the principles contained in the Convention, although it appeared that article 34 of the Panamanian Constitution, which related to police officers and provided for the defence of superior orders in the perpetration of an act of torture, did not comply with article 2, paragraph 3, of the Convention.

340. The Committee also concluded that the legal system as described during the consideration of the report appeared to be geared towards the highest possible protection of human rights. The Committee also took note with satisfaction of the penal system in place in Panama and of its principle of "non-imprisonment".

341. In addition, the Committee expressed its satisfaction with the timing and content of the report considered and expressed the hope that the Government of Panama would soon make a declaration to accept the provisions of article 22 of the Convention.